A.K. Ganguly JUDGMENT
A.K. Ganguly, J.
1. Several appeals were heard together as they arose out of similar incidents and some common questions are also involved.
2. The prosecution version as unfolded in the case is that on 29.11.2000 around 7:10 P.M. one Pappu @ Prakash Tripathi (PW-3) was in his apartment. Then on hearing the firing of three shots, he came out of his apartment and saw a light blue coloured scooter, which was parked in front of the apartment, was being started by a man and after him two other persons also boarded that scooter. PW-3 also saw a Matiz car which was parked by the side of the road and he saw the body of Mallu Bhaiya, the deceased, half inside the car and the other half was lying outside the same. PW-3 further saw that after starting the scooter, those persons drove it towards the road and took a turn to the right and drove towards the side of Dainik Bhaskar Press. PW-3 further deposed that at the time those persons left in the scooter they were "turning their heads back". Then PW-3 came outside his apartment and started shouting.
3. The further evidence of PW-3 is that he immediately ran towards the deceased and found there was no movement in the body. On hearing the shots and the shouts of PW-3, the nearby cable operator Brajendra Keshwani (PW-17), Umesh Singh (PW-2) and one Gopal Jain (not examined by the prosecution) came to the place of incident. Then PW-3 with the help of those persons put the deceased on the back seat of that Matiz car. PW-3 drove that car with PW-2 in the front seat to Marble Hospital and PW-3 got the report written in the hospital which is marked Exhibit P-11.
4. PW-3 is virtually the star witness of the prosecution.
5. Prosecution also relied on the evidence of Shishir Tiwari (PW-4) who was also on a scooter and was going to the house of the deceased to meet him. As he reached near the Bungalow of Major General in front of Park Apartment, he also claimed to have heard three shots. Then he stopped his scooter and saw another scooter at a distance of 60-70 feet and that scooter "was started and three persons boarded it" and "that scooter took a turn to reach the road and drove past me." According to him that scooter was driven 2-3 feet away from him towards Bhashkar Press side. He claimed to have seen those persons who were on that scooter.
6. PW-4 claimed to have seen PW-3 with the help of PW-2, PW-17 and Gopal Jain lifting the deceased in the Matiz car and driving it away with Umesh Singh (PW-2). He saw three ladies standing near the spot and on being asked by him the wife of the deceased, Jareena Chowrariya (PW- 10), who was in tears, told PW-4 that the assailants had murdered the deceased. PW-4 then on his scooter went to the Marble Hospital.
7. About the presence of PW-4 at the place of occurrence, this Court has some serious doubts which shall be discussed later.
8. This is admittedly a case based on circumstantial evidence and the evidence of PW- 3 and PW-4 form the main plank on which rests the prosecution case of circumstantial evidence.
9. In this case charge sheet was filed against seven persons, namely, A-1 Shambhu, A-2 Sapna @ Shhjahan, wife of Sambhu, A-3 Govinda @ Gudda, A-4 Musheer Khan @ Badshah Khan, A-5 Basant Shiva Bhai Jadav, A-6 Sattanarayan @ Sattu Sen, A-7 Mehffooz @ Chotey, remained an absconder and never faced trial. A-7 is the brother of A-2.
10. As per the prose........